While the Second Amendment is being violated in Arizona, we are getting news tonight that the First Amendment is being honored in the Fifth Circuit court of appeals.
Previously, we told you about Missouri v. Biden. As we said on July 4 of this year when the district court issued an injunction:
This is huge deal. This is potentially a landmark case on how the First Amendment applies in the age of social media[.]
We also covered that case here, here and here.
Generally speaking, it is widely believed that social media is free to censor people as they see fit. We believe there might be some legal arguments that can be made against that, but that is a common belief. ‘They’re just private companies making their own decisions’ is the argument offered by people defending this censorship. For instance, here’s uber-weenie David French making that argument:
We have suspected for years that this was French just running interference, and that, in fact, he likes Internet censorship. Recently, he confirmed our suspicions:
Antisemitism speech is free speech, however vile it can be. So French is upset that Twitter/X is allowing for free speech. We would rather have people feel free to say vile things then have someone decide what kind of speech is allowed.
But the other retort to the French view is presented in Missouri v. Biden, because the argument in that case is that the social media companies were not simply acting on their own. Private action can become government action, under the right circumstances—the most obvious being when the government coerces the private action. The lower court found that various social media companies—like Twitter/X, Meta/Facebook and Google/YouTube were—were not censoring based on their own desires, but because of illegal government pressure. As a result, the District Court issued a preliminary injunction, prohibiting a broad range of communication by the government, and it applied nationwide. If you have been on social media since then, this order protected your right to free speech.
The Biden administration appealed and tonight they largely lost. The Fifth Circuit largely upheld that order, explaining that this was the standard for when private action became state action.
The government cannot abridge free speech. U.S. Const. amend. I. A private party, on the other hand, bears no such burden—it is ‘not ordinarily constrained by the First Amendment.’ Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its ‘choice’—which if made by the government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455, 465 (1973)—’must in law be deemed to be that of the State.’ Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–36 (5th Cir. 1988). This is known as the close nexus test.
They also found that the Plaintiffs, including many doctors, state officials and even the Gateway Pundit had met the requirement that there be a sufficient threat of irreparable harm:
We agree that the Plaintiffs have shown that they are likely to suffer an irreparable injury. Deprivation of First Amendment rights, even for a short period, is sufficient to establish irreparable injury.
So, they largely upheld the lower court’s order. They did tighten up the list of officials being enjoined and they clarified the language so it clearly prevented both coercion and ‘significant encouragement’ as the law prohibits. This means that the Biden administration can ask nicely for censorship but can’t engage in the kind of pressure campaigns it has in the past…..
